Sovereignty, Meet Globalization: Using Public-Private Partnerships to Promote the Rule of Law in a Complex World

• Author: Major Christopher E. Martin
• Pages: 04

SOVEREIGNTY, MEET GLOBALIZATION: USING PUBLIC-PRIVATE PARTNERSHIPS TO PROMOTE THE RULE OF LAW IN A COMPLEX WORLD

MAJOR CHRISTOPHER E. MARTIN*

The international system-as constructed following the Second World War-will be almost unrecognizable by 2025 owing to the rise of emerging powers, a globalizing economy, an historic transfer of relative wealth and economic power from West to East, and the growing influence of nonstate actors.1

1. Introduction

   For hundreds of years, nation-states enjoyed a unique legal status as sovereign actors on the international scene.2 The post-World War II formation of the United Nations, followed by the rise of U.S. hegemony after the Cold War, solidified nation-states' positions as the primary actors in world affairs.3 But the emerging trends toward multi-polarity and disaggregation, where power is distributed more broadly among nation-states, international organizations,4 and non-state actors, cause

   many observers to question the old assumption that states hold a monopoly over the power to shape international events.5

   In light of these emerging power shifts,6 nation-states need new tools and strategies for managing their global relationships and exerting influence. United States security strategy is no exception.7 The ongoing struggles in Iraq and Afghanistan demonstrate that overwhelming military force cannot by itself guarantee security and stability in the emerging world order.8 Other U.S. and non-U.S. entities, including international organizations and non-state actors, have real stakes in building, or destroying, the needed political, economic, and social stability in post-conflict environments.9

   This unruly, unpredictable world order poses new challenges to domestic and international efforts to build rules-based frameworks for managing the rights, responsibilities, and interrelationships of individuals and institutions-what could be termed the "rule of law."10 However, at just the time that more rule of law is needed at every societal level to address these complex international relationships,11 rule of law practice, as it is traditionally understood, seems to be scattered in every direction with major players forging their own ways through their own programs with little coordination.12

   As with other global issues, the challenges arising from the spontaneous unfolding of globalization have left the rule of law without a "coherent frame of reference."13 From a macro-view, rule of law efforts worldwide are scarred by a lack of coordination,14 lack of local ownership,15 and a perceived inability to demonstrate tangible results.16 Many rule of law practitioners have failed to ask the hard questions about whether these programs are actually effective in the long run.17 Worst of all, though the major international players18-states, international organizations, and non-state actors-are involved in rule of law efforts, none of these entities seems able to comprehensively define the rule of law or agree on how to achieve it.19

   The rising challenges of the twenty-first century will require new ways of looking at the rule of law. The blurring of public and private authority and the resulting need for closer public-private cooperation, for example, may portend some previously unlikely rule of law partnerships.

   Public-private partnerships (PPPs), when permitted to flourish with voluntary participation and clear intentions, can effectively provide rule of law solutions where government efforts alone would otherwise fail. This article suggests that one type of unlikely partnership, PPPs between nation-states and private entities such as multi-national corporations (MNCs), is emblematic of the new approaches needed for rule of efforts in the twenty-first century. On one hand, MNCs are widely present and hugely influential on the international scene, with a reach that exceeds sometimes even that of states.20 On the other hand, MNCs are underappreciated and underutilized rule of law players, as very few rule of law scholars or practitioners have accounted for their significant influence. If states and MNCs can successfully partner to promote the rule of law, these successes may provide models for other types of rule of law partnerships, including in post-conflict military operations.

   Part II of this article delves into the unfinished challenges of Iraq and Afghanistan to demonstrate why PPPs can and should be a part of post-conflict stability operations. Part III lays a conceptual foundation for PPPs by expanding on the challenges inherent in promoting the rule of law in the current world order. It then devotes considerable time to exploring the different ways that the major players define the rule of law. Even when addressed from a practical bent, a widely-accepted framework for understanding the rule of law is the minimum normative umbrella for any meaningful rule of law progress on an international scale. As this article suggests, networks21 of PPPs could then help apply such a framework to particular rule of law projects or challenges. Part IV discusses practical theories on how to leverage the major rule of law players, in particular states and MNCs, to achieve cooperative rule of law progress. It delves both into the "soft power" increasingly utilized by MNCs, as well as the use of incentives for MNCs to partner in rule of law operations. By viewing MNCs as strategic actors, this article considers why MNCs, as well as any other actor, should care about the

   rule of law. Part V analyzes practical examples of ongoing efforts, through various forms of PPPs, to promote the rule of law. Finally, Part VI briefly examines potential criticisms of PPPs, and makes a reasoned plea for further inquiry into the use of PPPs to promote the rule of law.

2. Post-Conflict Rule of Law: Opportunities and Shortcomings

   If recent history is a reliable guide, then the United States will likely find itself involved in humanitarian and other military interventions for the foreseeable future.22 Post-conflict societies often present some of the most compelling rule of law challenges, as efforts in Iraq and Afghanistan illustrate. After years of rule of law projects in both countries, unequivocal successes are still hard to find. Both interventions demonstrate that sheer volume of effort cannot substitute for unity of effort, or at least unity of purpose. These interventions help illustrate why a networked approach to rule of law efforts is especially important to achieving lasting progress in post-conflict environments.

   A. Contractors in Iraq: A Missed Rule of Law Opportunity

   The U.S. military already relies on a massive PPP of sorts to support its operations in Iraq: civilian contractors.23 Deployed civilian contractors are likely to play a key role in any future U.S. military intervention, however infrequent one may hope that these interventions will be.24 The sheer volume and extent of involvement by U.S. Government contractors in nearly every aspect of Iraq operations, military and non-military, should indicate that their operations will impact the rule of law. Civilian contractors' reach in Iraq goes far

   beyond a mere contractual relationship; they represent, at least in the eyes of some observers, "an unholy merger of two hated institutions: capitalism and warfare."25 In the midst of concerted efforts to "win hearts and minds" and restore law and order, perceptions as to the behavior of outsiders go a long way. Even though they may be "paid" partners, a more deliberate emphasis on PPPs with contractors could help ensure that these contractors enhance, rather than take away from, rule of law efforts.26

   High profile incidents with U.S. contractors in Iraq reveal the direct impact that poor decisions can have on efforts to promote the rule of law. One blogger who participated in a USAID-led rule of law mission to the Suleymania University College of Law, for example, recounts how the overbearing, gun-in-the-face approach of USAID contractor security guards resulted, ironically, in a chilling of efforts to further engage the university in rule of law efforts.27 And in perhaps the most infamous incident, Blackwater contractors escorting a State Department convoy on

   16 September 2007 were suspected of indiscriminately gunning down eleven Iraqi civilians.28 The resulting scramble by both U.S. and Iraqi officials revealed just how little the role of such contractors had previously been considered. A joint U.S.-Iraqi panel launched an investigation into the matter.29 The Iraqi Interior Ministry banished Blackwater from operating in Iraqi, but was soon overturned by the Iraqi Prime Minister.30 The U.S. House Committee on Oversight and Reform

   launched its own hearings into Blackwater operations in Iraq.31 Five Blackwater employees were criminally charged in the United States with seventeen killings related to the incident.32 And on 27 November 2008, the Iraqi Parliament ratified the new U.S.-Iraq Security Agreement, which strips U.S. contractors of immunity from Iraqi criminal law for their actions.33

   The haphazard way by which the aftermath of this incident was addressed suggests that a PPP, among at least the contractors and U.S. and Iraqi governments, could have laid the groundwork for managing expectations and operating constraints in a way that would contribute to the overall mission of restoring peace and security, rather than polarizing public opinion.34 The U.S. Government could have, for example, initiated a PPP to bring together key players interested in the operations of contractors in Iraq, including Iraqi diplomatic and security officials, contractors' representatives, and even NGOs. The United States, as the predominant occupying power, had unique leverage to control the terms of the arrangement. At a minimum, the United States could have required contractors to adhere to specified rule of law standards as a condition of their contract. The United States, through a PPP, could also require...